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This article is about deciding who should or should not be deposed during discovery. Most lawyers will look at the written discovery (interrogatory answers provided by the other side identifying who may have information about the facts and the other’s side’s document production) along with information provided to them by the client and then depose anyone who has had any connection to the case whatever.
The etiology of this practice has, in part, to do with the fact that, for years, many defense practitioners had virtually unlimited budgets that allowed them to leave no stone unturned. In turn, this became the fashion for all lawyers – if it was good enough for the “big/top dog” law firms to leave no stone unturned it must be a “best practice.”
Taking lots of depositions may also be a way to give young associates training in examination techniques in a no harm no foul situation where they get to take the “less important” witnesses. But I personally question how this does the trick other than allowing a young lawyer to get over the yips of asking a witness questions. Presumably, a good trial practice course can provide this experience and more, and afterwards the associate can conduct meaningful depositions.
Taking every deposition under the sun may also be due to practicing out of fear – the fear of a surprise witness coming out of the blue in an affidavit in connection with a summary judgment motion or, worse yet, at trial. As we all know, the practice of defensive medicine has caused medical costs to balloon. The same can be said for choosing who you depose based upon fear.
Not being surprised is a valid concern, but deposing everyone connected with the facts is not the answer. Why? Because doing so results in numerous meaningless depositions being taken and allows one to avoid focusing, early on, on what their case is about and what they need to do to get it prepared properly.
Not only is this a wasteful practice that unnecessarily increases litigation costs, in many instances it is a bad litigation strategy. In short, one does not need to and should not depose every possible witness in order to avoid being surprised.
Rather, what is required is a focus on what your case is about, how it may look at trial, how you want it to look at trial, and what you need to do in order to get there. Most lawyers don’t engage in this all important analysis until after discovery is completed. Their refrain? “How can I know what my case is going to look like until discovery is completed and every witness is deposed?” The lazy approach, a lame contention and a very bad practice.
It’s imperative that you look across and know (as best you can) what to expect from the other side.
Rule No. 1 in developing a deposition program – you must have a clear conceptualization of what you want your case-in-chief to look like at trial, and you also must anticipate what you believe the other side’s case is going to look like.
If you don’t, then you are on a rudderless ship that will flounder aimlessly through discovery. How can you possibly know what to ask if you don’t have a clue (1) what you want your case to look like at trial and (2) what you believe the other side’s case is going to look like?
Only with a clear idea of what each side’s case is going to look like at trial can you develop a meaningful deposition program. How to develop your best case story and anticipate the other side’s best case story has been the subject of published articles that I have previously written (which you can find at my web site) and will be the subject of future posts.
Once you have done so, then you must place the potential witnesses into various categories:
- witnesses controlled by the other side that you believe are going to be key witnesses for you and whom you need to depose prior to trial;
- witnesses who you believe are going to be key witnesses for the other side and which the other side will be able to bring to trial;
- witnesses currently controlled by you who provide needed testimony and who, for whatever reason, may not be available at trial;
- third party witnesses who are within the subpoena jurisdiction of the court and who may testify either favorably or unfavorably for your case;
- third party witnesses who are not within the subpoena jurisdiction of the court or otherwise not available at trial and who may testify either favorably or unfavorably for your case;
- witnesses currently controlled by you who provide needed testimony and who will be available at trial.
Once you have placed witnesses into their respective categories, then you have to critically analyze on a witness-by-witness basis why you need to depose a particular witness.
Part two of this article will be included in the December issue of The Discovery Update.
About the Author:
Over the last 28 years, Stewart Weltman has been a lead and trial counsel in numerous complex litigation matters for both plaintiffs and defendants, ranging from antitrust, accounting malpractice, legal malpractice, securities fraud, patent issues, contract actions, and consumer fraud.
Mr. Weltman was a partner with the nationally known plaintiffs’ complex litigation firm, Cohen Milstein Hausfeld & Toll P.L.L.C.. In January 2007, Mr. Weltman formed the Weltman Law Firm.